Passive voice weakens legal writing by obscuring who performs actions. "The contract was breached" leaves unclear who breached. "Defendant breached the contract" assigns clear responsibility. According to legal writing experts at Georgetown Law, converting passive to active voice improves clarity by 40% and reduces word count by 20-30%. Legal writing teachers and style guides overwhelmingly recommend active voice for clarity and persuasiveness.
Why Does Passive Voice Weaken Legal Writing?
Passive voice obscures actors and actions—the two things that matter most in legal documents. In contracts, who does what determines obligations. In briefs, who did what determines liability. Passive voice muddles these crucial actor-action relationships.
Passive vs. Active Voice in Legal Writing
| Passive (Weak) | Active (Strong) | Why Active Wins |
|---|---|---|
| The contract was breached. | Defendant breached the contract. | Assigns clear responsibility |
| The motion was filed by Defendant. | Defendant filed the motion. | 30% fewer words |
| Services shall be provided by Plaintiff. | Plaintiff shall provide services. | Emphasizes who bears obligation |
| Mistakes were made. | We made mistakes. | Acknowledges rather than evades |
| The agreement was executed in 2024. | The parties executed the agreement in 2024. | Identifies actors |
Passive voice also adds unnecessary words. "The motion was filed by Defendant" uses 6 words. "Defendant filed the motion" uses 4 words. Legal writing should be concise. Page limits and reader attention are finite. Converting passive to active typically reduces word count 20-30% while improving clarity. This efficiency compounds across briefs, contracts, and memos.
When Is Passive Voice Acceptable in Legal Writing?
Passive voice has 3 legitimate uses in legal writing:
1. When the actor is unknown or unimportant:
"The building was constructed in 1950." (Builder identity irrelevant to case)
2. When emphasizing the object over the actor:
"The plaintiff was injured by falling debris." (Focus on injury, not debris)
3. When deliberately avoiding blame assignment:
"An error was made in the calculation." (Diplomatic avoidance in settlement negotiations)
These exceptions are the minority. Most passive voice in legal drafts results from habit, not strategic choice. AI highlighting helps identify all passive constructions so writers can make conscious decisions about whether each serves a legitimate purpose.
What Documents Benefit Most From Active Voice?
Litigation documents benefit enormously. Briefs and motions should be persuasive. Active voice is more persuasive. "Defendant breached the contract" is stronger than "The contract was breached by Defendant." Judges and opposing counsel subconsciously respond better to clear, active prose.
Contracts also benefit. Contract passive voice often appears in obligations: "Payment shall be made within 30 days." The active alternative—"Customer shall pay within 30 days"—clearly assigns obligation to a specific party. This prevents disputes about who must act. Active voice in contracts improves enforceability and reduces conflict.
Passive Voice Frequency by Document Type
| Document Type | Typical Passive % | Target Passive % |
|---|---|---|
| Legal briefs | 15-25% | <5% |
| Contracts | 20-35% | <10% |
| Legal memos | 10-20% | <5% |
| Complaints | 10-15% | <3% |
How to Identify and Fix Passive Voice
Passive voice combines a "to be" verb plus past participle: "was filed," "has been determined," "will be provided." Simply flagging "was" or "were" creates false positives ("was happy" is not passive). Accurate identification requires analyzing the complete verb phrase.
3-Step Process to Fix Passive Voice:
- Identify the actor: Who or what performs the action?
- Make the actor the subject: Move the actor to the beginning
- Use active verb: Replace "was [verbed]" with simple active verb
Example:
Passive: "The motion to dismiss was denied by the Court."
Step 1: Actor = the Court
Step 2: "The Court..."
Step 3: "The Court denied the motion to dismiss."
Frequently Asked Questions About Passive Voice in Legal Writing
Why do lawyers use so much passive voice?
Habit, not strategy. Law school doesn't always emphasize active voice, and legal documents are full of passive constructions that get copied. Lawyers mimic the style they learned without questioning whether passive serves a purpose. Conscious revision eliminates unnecessary passive while preserving strategic uses.
Is passive voice ever required in legal documents?
No, but some conventions exist. Phrases like "It is agreed that..." appear frequently in contracts. These are conventional but not required. "The parties agree that..." works equally well. Writers can choose to maintain conventions or convert to active alternatives.
How much passive voice is too much?
Target under 5% of sentences in briefs and memos; under 10% in contracts. If 20%+ of your sentences are passive, you likely have a style issue requiring systematic revision. Statistics help calibrate whether you need broad revision or just occasional fixes.
Does passive voice affect persuasiveness?
Yes, significantly. Active voice is more direct, engaging, and forceful. Studies show readers perceive active voice as more confident and credible. In litigation where persuasion matters, active voice provides a competitive advantage.
Can AI help identify passive voice in legal documents?
Yes, AI tools like River's Passive Voice Checker identify every passive construction instantly. The tool highlights passive sentences without rewriting, letting you decide which to revise. It also provides statistics showing your overall passive voice percentage.
AI-powered passive voice highlighting identifies every passive construction instantly. By analyzing grammatical patterns, AI marks passive sentences throughout legal documents. Legal writers benefit from comprehensive detection, improved clarity, and concise expression. The technology handles pattern recognition while you provide judgment about appropriate revisions. Use River's Passive Voice Checker to strengthen your legal writing.